Exhibit 5
AGREEMENT
This AGREEMENT (this "Agreement") is made and entered into as of April 18,
2006, by and between Abraxis BioScience, Inc. f/k/a American Pharmaceutical
Partners, Inc., a Delaware corporation (the "Company"), and RSU Plan LLC
("RSU LLC").
WHEREAS, American BioScience, Inc., a California corporation ("ABI"),
and the Company have entered into an Agreement and Plan of Merger, dated as
of November 27, 2005 (as it may be amended from time to time, the "Merger
Agreement"), pursuant to which, at the "Effective Time" (as defined in the
Merger Agreement), ABI will merge with and into the Company (the "Merger");
WHEREAS, ABI has adopted the American BioScience, Inc. Restricted
Stock Unit Plan II (the "Plan") pursuant to which Restricted Stock Units
have been granted to Employees of the Company and its Affiliates;
WHEREAS, following the Effective Time, on the occurrence of Vesting
Dates specified in award agreements issued pursuant to the Plan, holders of
Restricted Stock Units will become entitled to receive shares of common
stock of the Company ("ABBI Common Stock") equal in value to the value of
the Restricted Stock Units based on the then-current market price of ABBI
Common Stock or cash (or a combination thereof); and
WHEREAS, the Company and RSU LLC intend hereby to provide that (i)
prior to each date on which Restricted Stock Units are settled under the
Plan by reason of the occurrence of a Vesting Date (each such date, a
"Settlement Date"), RSU LLC shall deliver, or cause to be delivered, to the
Company shares of ABBI Common Stock or cash (or a combination thereof) in
an amount sufficient to satisfy the obligations of the Company to
Participants in respect of Restricted Stock Units that have become vested
on such Vesting Date, and (ii) the Company shall satisfy its obligations
under the Plan by paying the Participants cash and/or shares of ABBI Common
Stock in the same proportion as such delivery by RSU LLC;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound, the parties agree as
follows:
1. Delivery by RSU LLC. RSU LLC hereby agrees that, on or prior to
each Settlement Date, it shall deliver, or cause to be delivered, to the
Company (i) shares of ABBI Common Stock, (ii) cash or (iii) a combination
of shares of ABBI Common Stock and cash, in each case in number and/or
amount equal to the aggregate value of the vested Restricted Stock Units to
be settled on such Settlement Date. For purposes of the preceding sentence,
the value of any shares of ABBI Common Stock to be so delivered shall be
determined by reference to the valuation provisions set forth in the award
agreements issued under the Plan. The Company shall give RSU LLC not less
than ten business days' notice of each Settlement Date. The decision by RSU
LLC of whether to deliver ABBI Common Stock, cash or a combination of ABBI
Common Stock and cash in satisfaction of its obligations hereunder shall be
made by RSU LLC in its sole discretion.
2. Satisfaction by the Company of its Obligations under the Plan. The
Company hereby agrees as follows:
(i) In the event that a delivery made by RSU LLC pursuant to
Section 1 of this Agreement in respect of a Settlement Date consists
solely of shares of ABBI Common Stock, the Company shall settle the
vested Restricted Stock Units to be settled on such Settlement Date by
delivering solely ABBI Common Stock to the holders thereof.
(ii) In the event that a delivery made by RSU LLC pursuant to
Section 1 of this Agreement in respect of a Settlement Date consists
solely of cash, the Company shall settle the vested Restricted Stock
Units to be settled on such Settlement Date by delivering solely cash
to the holders thereof.
(iii) In the event that a delivery made by RSU LLC pursuant to
Section 1 of this Agreement in respect of a Settlement Date consists
of a combination of shares of ABBI Common Stock and cash, the Company
shall settle the vested Restricted Stock Units to be settled on such
Settlement Date by delivering to each holder thereof a number of
shares of ABBI Common Stock and an amount of cash in the same
proportions as the proportions of ABBI Common Stock and cash so
delivered by RSU LLC; provided, that the Company may, in its
discretion, disproportionately withhold cash from a holder in
satisfaction of its obligations to withhold income and employment
taxes in connection with the vesting of Restricted Stock Units.
3. Miscellaneous.
(a) Capitalized Terms. Capitalized terms used but not defined herein
shall have the meanings set forth in the Plan or in the award agreements
issued under the Plan, as applicable.
(b) Effectiveness. This Agreement shall become effective at the
Effective Time and shall terminate without liability or penalty on the part
of either party hereto upon termination of the Merger Agreement pursuant to
the terms thereof.
(c) Notices. Unless otherwise provided herein, all notices, requests,
demands, claims and other communications provided for under the terms of
this Agreement shall be in writing. Any notice, request, demand, claim or
other communication hereunder shall be sent by (i) personal delivery
(including receipted courier service) or overnight delivery service, (ii)
facsimile during normal business hours, with confirmation of receipt, to
any facsimile number provided by either party hereto to the other party for
purposes of receipt of notice, (iii) reputable commercial overnight
delivery service courier or (iv) registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient
as set forth below:
(i) If to RSU LLC, to:
RSU Plan LLC
000 Xxxxx Xxxxxxxxxx Xxx., #000
Xxx Xxxxxxx, XX 00000
Attention: Manager
(ii) If to the Company, to:
Abraxis BioScience, Inc.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
All such notices, requests, consents and other communications shall be
deemed to have been given when received. Either party may change its
facsimile number or its address to which notices, requests, demands, claims
and other communications hereunder are to be delivered by giving the other
party hereto notice in the manner then set forth.
(d) Amendments. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement shall be effective
against any party unless such modification, amendment or waiver is approved
in writing by each party hereto. The failure of either party to enforce any
of the provisions of this Agreement shall in no way be construed as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(e) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of both parties and their successors, legal representatives and
assigns.
(f) Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
(g) Counterparts. This Agreement may be executed in counterparts with
the same effect as if the parties hereto had signed the same document. All
counterparts shall be construed together and shall constitute one
instrument.
(h) No Third Party Beneficiaries. No provision of this Agreement shall
create or be deemed to create any third party beneficiary rights in any
person not a party to this Agreement.
(i) Integration. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and,
except as otherwise provided herein, supersedes all prior agreements and
understandings pertaining thereto.
(j) Governing Law. This Agreement and the rights of the parties
hereunder shall be interpreted in accordance with the laws of the State of
Delaware, and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
and delivered this Agreement as of the date first written above.
RSU PLAN LLC ABRAXIS BIOSCIENCE, INC.
/s/ Xxxxxx X. Xxxxxx /s/ Xx. Xxxxxxx Soon-Shiong
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By: Xxxxxx X. Xxxxxx By: Xx. Xxxxxxx Soon-Shiong
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Title: Manager Title: Chief Executive Officer
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